1984 PLP 1792 (CLC)

1. The facts leading to the filing of this petition briefly stated are that the respondent filed an application for ejectment in the Court of the Rent Controller at Karachi being Rent Case No 927/1976 against his tenant the applicant. The said application after hearing the parties was allowed by the Rent Controller on the ground of the requirement of the said premises for the personal use and occupation of the landlord the respondent by order passed on 23rd September, 1980. Against the said order First Rent Appeal No. 822/1980, was filed in the High Court, which was dismissed by Judgment given on 23rd December, 1982. The applicant tenant thereafter filed C. P. S. L. A. No. K‑85/1983 before the Honourable Supreme Court, which was also dismissed by order dated 22nd February, 1583.

2. Thereafter the respondent landlord filed Execution Application No. 6 of 1983, seeking ejectment of the applicant. During the execution proceedings the applicant filed application under section 12(2) of C. P. C. Sections 40, 41 and 42 of the Evidence Act read with sections 22 and 53 of Sind Rented Premises Ordinance, 1 o79 and Order XIII, rule 4 of C. P. C. and sought to adduce additional evidence which according to him came to his knowledge in February, 1983 to the effect that the ground of personal requirement, on which Case No. 927/1976 was filed and orders of ejectment were obtained against the applicant was totally false and mala fide and that the true facts were concealed and suppressed by the respondent/landlord from all the Courts. The learned Executing Court, however, dismissed the said objections applica tions filed by the present applicant by order dated 13th March, 1983.

3. After the dismissal of the applications by the executing Court, the applicant on 15th March, 1983, filed Civil Suit No. 1034 of 1983 in the Court of XIX Civil Judge, Karachi, praying for declaration that the order for ejectment was obtained against the applicant in the above‑mentioned rent case by playing fraud. In the said suit however by an order passed on 19‑3‑1983 on an applica tion filed under Order VII, rule 11, C. P. C., the learned Civil Judge rejected the plaint with the observation that the plaint as well as the arguments advanced by the learned counsel for the plaintiff/applicant were nothing but criticism of the evidence brought on record in the ejectment case which was not permissible and was beyond the jurisdiction of the civil Court who could not sit over the appraisal of the evidence on which the orders and judgments were passed ' by the Rent Controller, the High Court and even by the Honourable Supreme Court. Against the above order of the learned civil Court rejecting the applicant, on 26‑3‑1983, filed Civil Appeal No. 116 of 1983 before the District Judge, which was also dismissed on 8‑6‑1983. This order was not further challenged and was allowed to attain finality.

4. It is important to mention here that after the rejection of the plaint on 19th March, 1983 and dismissal of the appeal on 8‑6‑1983 as mentioned above in para. 3, the applicant then chose to file a time‑barred appeal (Civil Miscellaneous Appeal No. 17‑1/83) on 28th July, 1983 in the Court of the learned District Judge, Karachi against the order dated 13‑3‑1983 passed by the Rent Controller in Execution No. 6 of 1983. This appeal was also dismissed by the learned lower appellate Court by order passed on 13th October, 1983.

5. The applicant has now preferred this petition wherein he seeks to challenge the aforementioned order passed on 13th October, 1983, by the learned lower appellate Court, and the order passed on 13‑3‑1983 by the Rent Controller.

6. I have heard Mr. Channa, the learned counsel for the applicant. At the very outset the learned counsel was called upon to satisfy the Court as to the maintainability of the Civil Miscellaneous Appeal No. 174/1983, filed before the lower appellate Court on 28‑1‑1983, against the order dated 13‑3‑1983 passed by the VIII Senior Civil Judge Rent Controller, Karachi as the said appeal obviously appeared to be beyond the prescribed period of 30 days and thus barred by time. The learned counsel for the applicant conceded that application for grant of certified copy of the order dated 13th March, 1983 was made on 15th March, 1983 and that the copy was made ready and delivered to him on the same day. This fact also finds support from the endorsement which appears at the bottom of the copy of the order dated 13‑3‑1983 which appears as Annexure "F" at page 67 of the record. The learned counsel, however submitted that the period which was spent by the applicant while pursuing Suit No. 1034/83, i.e. from 15th March, 1983 till 19th March, 1983 when the plaint was rejected and the further period from 26th March, 1903 when the applicant filed an appeal against the order of rejection of the plaint till its dismissal on 8‑6‑1983, is liable to be condoned under section 5 of the Limitation Act as according to the learned counsel this time was spent in pursuing a wrong remedy in a wrong Court under mistaken advice given by the applicant's then Advocate. Reliance was sought to be placed on the case of Nazar Muhammad and others v. Mst. Shahzada Begum and another (P L D 1974 S C 22). The facts of the said case were that on the mistaken advice given by the Advocate for the appellant that period of limitation for filing petition for leave to appeal before the Honourable Supreme Court is 90 days from the date of decree appealed against and that the said advice had been given by the counsel after consulting the book known as Tagore Law Lacture by Mitra extension of time was prayed for. It was also pleaded that the respondent was a Pardanasheen lady and that in the circumstances it was a sufficient cause for condoning the delay. No counter‑affidavit was filed. On the facts of that case the Honour able Supreme Court was pleased to accept the explanation and held that there was sufficient ground to condone the delay under section 5 of the Limitation Act. I have considered the principle laid down in the above judgment and find that the present case of the applicant is not covered by, the said principle. It is settled law that valuable rights are created in favour of the other party by the lapse of time and that the same could not be lightly condoned or the party deprived of the said valuable rights is civil matters, except for sufficient cause. Reference may also be made here to the case of Islamic Republic of Pakistan v. The Settlement Commissioner (1974 S C M R 393). The Honourable Supreme Court in the said case laid down the principle in the following words :‑

"A valuable right accrues to the other side by the lapse of time and he cannot be lightly deprived of this right merely on the ground that the other side has unnecessarily wasted time in frivolous and wholly misconceived petition in the High Court."

7. It was argued before this Court that after the dismissal of the appeal on 8‑6‑1983 against the order of rejection of the plaint in Suit No. 1034/1983 the applicant engaged a new counsel who advised him that the suit which he had filed earlier was not proper remedy and that he ought to have filed an appeal against the order passed on 13th March, 1983 by the Rent Con troller. After this advice was given the period between 9‑6‑19h3 till 28‑7‑1983 was spent by him in collecting the papers and preparing the appeal (out of which this petition has arisen) which was ultimately filed on 28‑7‑1983. I am however of the opinion that the change of the Advocate and the new advice allegedly given by another Advocate would not be a valid or sufficient cause for extension of time in filing the appeal beyond the statutory period prescribed by the law.

8. Moreover, it would be observed that the plaint in Suit No. 1034/1983 was rejected on 19th March, 1983 and the appeal preferred against that order was dismissed on 8th June, .

983. Thereafter the Civil Miscellaneous Appeal No. 174/1983 was filed i. e. after a lapse of almost 50 days i. e. on 28th July, 1983 of the passing the last order on 8th June, 1983. There is abso lutely no explanation for this inordinate delay of almost 50 days in filing the appeal before the District Judge even after dismissal of the appeal arising out of the Suit No. 1034/1983. The Honourable Supreme Court has authoritatively laid down the law that vested rights having accrued in favor of the opposite‑party due to lapse of time, the same cannot be taken away except on valid grounds and that delay of each day should be satisfactorily explained. In the light of the above principle being of the opinion that sufficient cause has not been shown for condonation of delay in filing the appeal after lapse of almost 137 days computed from 13th March, 1983 till 28‑7‑1983 when the Civil Miscellaneous Appeal No. 174 of 1983 was filed before the learned District Judge the said appeal was liable to be dismissed on this ground alone as hopelessly barred by time. Thus, there is no valid reason to admit this petition for hearing against an order passed in the appeal which itself was barred by time.

9. Lastly, reference may also be made to the case of Allah Bux v. Custo dian of Evacuee Property (1968 S C M R 117), wherein the Honourable Supreme Court refused to condone the inordinate delay in filing the petition for leave to appeal with the observation that "the wrong advice of a lawyer cannot be regarded a good and sufficient cause for exclusion of the period spent in proceeding with the misconceived application for the certificate." It was further observed in that case that it was the duty of the petitioner to explain each day's delay since the dismissal of the petition for certificate, for which he had failed to give any satisfactory explanation. The principle laid down as above by the Honourable Supreme Court applies with full force to the facts of this case.

10. Finally I am constrained to observe that the procedure adopted by the applicant amounts to gross abuse of the process of the Court. The controversy finally stood settled by the judgment of the Honourable Supreme Court, passed in C.P.S.L.A. No. K‑85 of 1983 on 22‑2‑1983. Any attempt to re‑open the matter on frivolous grounds after decision by the highest Court of the country cannot be allowed to be encouraged.

11. For the above reasons this petition is dismissed summarily. M. B. A. Petition dismissed.